Babcock v. Welsh

McKee, J. This action is brought by plaintiff as owner in fee and in the actual possession of a tract of inclosed land in Butte County, to enjoin the defendant from taking down his inclosure and entering upon the land for the purpose of opening upon it a public road.

By his answer to the complaint, the defendant admits that he claims the right to enter upon the plaintiff’s land for that purpose; and that unless enjoined by the court he will enter upon it in pursuance of an order made by the board of supervisors of Butte County on the eleventh day of April, 1885, which commands him, as road overseer of the district in which the land of plaintiff is situated, “to remove all obstructions on a road as originally established and declared a public highway, and to open the same.”

It is found as fact, that on the 3d of November, 1875, a strip of land thirty feet wide within the inclosure of the plaintiff was condemned for a public road; that the condemnation was made in a proceeding commenced for that purpose by the plaintiff himself and other real property owners, and that compensation was duly awarded and paid to the plaintiff for the land which was to be taken from him for the road.

In law, payment of the compensation awarded vested in the public the right of way over the land; and under the law, the public, acting by its authorized agents, had the right to proceed to locate and open the road upon the land, and in the execution of that right to remove any obstructions which might be upon it. (Pol. Code, sec. 2631.)

But the road was never in fact located and opened upon the land. The fact is, as the court finds, that the strip of land within the plaintiff’s inclosure which was intended to be taken for the road was situated south of a line “between sections 6 and 7 and 5 and 8, to the northeast corner of the northwest quarter of the north[402]west quarter of section 8, township 17 north, range 4 east, M. D. M.,” and “has never been opened, used, worked, or traveled as a highway except at a point on the east terminus of said line.”

The reason why the road was not opened and located upon the land is, that the viewers appointed in the condemnatory proceedings laid out and opened the road on a strip of land thirty feet wide from “ a point on the township line between ranges 3 and 4 east, about nine rods north of the line of road petitioned for, and thence running east, inclining south, until it intersected the section line between 5 and 8 in said township and range”; and it is contended that the location was a mistake.